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The ideas that formed the Constitution, Part 18: Montesquieu

The ideas that formed the Constitution, Part 18: Montesquieu

This essay first appeared in the Feb. 17, 2023 Epoch Times.

Montesquieu’s full name was Charles-Louis de Secondat, baron de LaBrède et de Montesquieu. When he was born near Bordeaux, France, in 1689, he was merely Charles-Louis de Secondat. He received the baronry of LaBrède (with rich wine land) from his mother. He received the barony of Montesquieu from his uncle. He received a dowry of 100,000 livres from his wife. She was good at managing their property.

Montesquieu was a fortunate man.

He received the usual education centered on the Greco-Roman classics, then obtained a law degree from the University of Bordeaux. This was appropriate because his inheritance from his uncle included a paid position with substantial judicial duties. Eventually, he sold this office (you could do that in pre-Revolutionary France) so he could concentrate on research and writing.

Like so many other personalities in this series, Montesquieu was multi-faceted. He was a satirist, a historian, a political commentator, and apparently very good company. Also, like so many other personalities in this series, he traveled widely: Austria, Hungary, Italy, Germany, and 18 months in England. The stay in England, together with his association with Englishmen on his other travels, fanned admiration for British political institutions.

Montesquieu’s greatest work was “The Spirit of the Laws.” It was composed mostly between 1744 and 1748, then published in the latter year and re-issued in 1750. This book, with its praise of English institutions, wasn’t popular in France. But it was hugely popular in England.

In fact, the popularity of “The Spirit of the Laws” induced Englishmen to buy more wine from Montesquieu’s LaBrède estate. This provoked the self-deprecating remark, “The success of my book in that country contributed to the success of my wine, although I think that the success of my wine has done still more for the success of my book.”

Montesquieu had homes both at LaBrède and in Paris. At the end of 1754, he traveled to Paris to close his house there so he could retire permanently to LaBrède. However, he contracted a fever in Paris and died on Feb. 10, 1755.

Following Montesquieu’s Advice

Montesquieu relied heavily on writers discussed earlier in this series, including Plato, Xenophon, Aristotle, Polybius, Cicero, Livy, Plutarch, and Tacitus. He obtained other ideas from British institutions. Beyond those sources, however, his work showed a great deal of originality.

Participants in the constitutional debates of 1787–1790 quoted and relied on Montesquieu more than any other political commentator. The sheer volume of references requires me to limit this discussion to a general summary of how the Founders employed his ideas.

First, let’s look at some central features of the Constitution. The Montesquieu-ian feature cited most frequently is the document’s separation of powers into three branches—legislative, executive, and judicial.

Although Montesquieu contended for separation of powers, he didn’t argue that they should be separated entirely. He argued only that no person or persons exercising all of one power should also exercise all of another.

The Constitution reflects his view: It doesn’t maintain a strict division of legislative, executive, and judicial authority. As I point out in my book, “The Original Constitution,” separation of powers isn’t as fundamental to the document as independence of judgment.

Montesquieu offered counsel as to when one branch should exercise a power normally attributed to another. He recommended that the executive enjoy a veto over new legislation. The framers put that in the Constitution. He recommended that, beyond his veto, the president shouldn’t share a significant portion of the legislative power. That’s reflected in the Constitution as well. He further suggested the Constitution’s method of impeachment and removal of federal officers.

The French sage also recommended that the legislative branch be composed of many persons and the executive branch be led by just one.

Thus far, you might think Montesquieu and the Founders were simply adopting British institutions. That isn’t entirely true. The Crown theoretically had a veto over parliamentary bills, but it had been unused since 1708; the veto was no longer an active part of the British system. The King was theoretically chief executive, but actually, Britain had a hybrid executive, consisting of the King, the cabinet, and certain standing committees, such as the Board of Trade. Montesquieu, on the other hand, recommended a true unitary executive, and the Constitution’s framers generally followed his advice.

They also followed his advice on a different matter entirely. Montesquieu argued that republican government broke down if it extended over a large territory. His remedy was a “confederate republic”—a union of states that granted some power to a central authority but retained most authority at the state level.

In such a confederation, Montesquieu wrote, if one state suffered an invasion or insurrection, the others could come to its assistance. But he cautioned that confederations of republican states shouldn’t admit other kinds of states, particularly monarchies. Monarchies were too aggressive. If you examine the Constitution’s Guarantee Clause (Article IV, Section 4), you will see these ideas represented.

Antifederalist Objections

The Constitution’s opponents—the Antifederalists—also admired Montesquieu. During the debates over the Constitution’s ratification, they argued that the document violated Montesquieu’s precepts. They made four principal points:

  • Montesquieu recommended separation of powers, and the Constitution blurred them somewhat.
  • Montesquieu said republican government was successful only in constricted territory and America was very large.
  • Montesquieu wrote that “the greatness of the power must be compensated by the brevity of the duration.” He favored one-year terms of office and, therefore, annual elections. The Constitution provides for longer terms.
  • Montesquieu said that in a republic the rules of voting and elections should be laid out in the fundamental law, but the Constitution allowed Congress to override state laws governing its own elections (Article I, Section 4). This conflict of interest would enable members of Congress to manipulate their own elections to their advantage.


Federalist Responses

The Constitution’s supporters—the Federalists—had no problems responding to the first three arguments:

  • They explained that Montesquieu didn’t advocate an entire separation of powers, only that no person or group holding the totality of one power should hold the totality of any other. Montesquieu praised the British system, which blurred powers even more than the proposed Constitution. And Montesquieu recommended that the executive have a veto on new laws.
  • Against the objection that America was too large for a single republican government, the Federalists pointed out that they weren’t creating a unitary republic, but a federation of states—just the solution Montesquieu proposed for extending republican government over a large territory.
  • As to annual elections: The Federalists observed that the British system so admired by Montesquieu didn’t have them. They noted that Montesquieu’s recommendation for annual elections applied to unitary systems, not to federations. The federal government’s power would be constricted enough to render longer terms of office safe.

The Antifederalists’ fourth objection was more solid, and the Federalists had more trouble answering it. Why should Congress be able to manipulate its own elections? Even some Federalists had doubts about this. They favored ratifying the document, but amending it to remove this prerogative from Congress. Other Federalists argued that Congress’s authority to regulate its own elections was necessary because a state might refuse to adopt a congressional election law. Or a state might be under foreign occupation and unable to do so. They assured the public that the power would be exercised sparingly (pdf).

On this point, history has largely vindicated Montesquieu and the Antifederalists. Congressional intervention designed to “cure” electoral problems often has made them worse. Moreover, this power has been a standing invitation to politicians who want to rig voting systems to their own advantage. An excellent case in point is the bill that passed the House of Representatives in 2022 under the Orwellian name of the “For the People Act” (H.R. 1).

Read prior installments here:  firstsecondthirdfourthfifthsixthseventheighth ninth, tenth, eleventh. twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth.

Rob Natelson